NHS: Clinical Negligence

Debate between Earl Howe and Lord Phillips of Sudbury

Tuesday 20th January 2015 Lords Chamber

[Earl Howe]

The noble Lord makes a series of good points. He may be interested to know that part of the series of pledges that form the Sign up to Safety campaign, which hospitals can apply for, can include the principles of being transparent with people—including about any mistakes that have been made and what is being done to tackle safety issues—and collaboration, by taking a leading role in supporting local collaborative learning, so that the system genuinely can work together and learn together.

[Lord Phillips of Sudbury (LD)]

My Lords, is my noble friend satisfied—I am thinking, for example, of the scandal of whiplash claims—that the legal resources available to the NHS are sufficient for the task?

[Earl Howe]

Yes, my Lords, we are satisfied that the NHSLA does a very good job. Indeed, about half the claims it receives are rejected and it contests robustly any claims that are ill founded.

Health and Social Care Bill

Debate between Earl Howe and Lord Phillips of Sudbury

Thursday 8th March 2012 Lords Chamber

[Earl Howe]

My Lords, I can give the noble Baroness that reassurance. This will apply to managers and leaders at every level in the system. It will not be confined just to a select group.

[Lord Phillips of Sudbury]

My Lords, I first thank the seven Peers who added their voices to the amendment. I thank my noble friend the Minister for an extremely thoughtful and comprehensive reply. None the less, it would be dishonest of me to say that he convinced me on all counts. It is perhaps asking too much on such a complicated business to have full satisfaction.

The one thing that I am bound to say is that the Minister’s interpretation of these various provisions in the various codes is different from mine. I am a lawyer extremely long in the tooth and I do not think that the provisions that he quoted, although they look helpful on the face of it, actually work in practice. That is evidenced by the total absence of any disciplinary measures—ever, as far as I can see—against doctors acting improperly in relation to queue-jumping. However, that is in the past.

I must quickly answer questions raised of me by the noble Baroness, Lady Murphy, and the noble Lords, Lord Warner and Lord Ribeiro. The noble Lord, Lord Ribeiro, is the easiest to answer: the amendment does not cover the existing NHS trusts, only the NHS foundation trusts. However, I think that the NHS trusts are going to be out of existence in a couple of years’ time. I saved the House by not including that; I would have had it at Third Reading if necessary. As to the noble Lord, Lord Warner, he can go to his private knacker any day, any place, any time and pay what he likes. To the noble Baroness, Lady Murphy, the answer is that, if you are having private treatment within an NHS hospital, the amendment would prevail, had it passed; namely, you could not then barge the queue because you were a private patient in respect of essential clinical care. It really is as simple as that.

I do not get the sense from the House that noble Lords want a Division on this matter. I do get the sense that they are impressed by what the Minister said, particularly in relation to the management code. That could make a very big difference. The only thing that I ask my noble friend the Minister—if he is with me—is that he just keeps an eye on the issue at the heart of this amendment and the debate, and, in the new regime that we are ushering in, on the concerns behind this amendment, shared by many in the country.

[Earl Howe]

Before my noble friend withdraws the amendment, I give him that reassurance. The NHS constitution will be monitored at every level in the system, from the Secretary of State downwards, as will the provisions within relating to access to healthcare for NHS patients. Of course, if there is any sign that that pledge in the constitution is being jeopardised in any way, appropriate action will of course be taken.

I am told that I should clarify what I said in answer to the noble Baroness, Lady Finlay, about to whom manager training will apply. It will apply to “leaders across the NHS”—it says here. It will primarily be aimed at very senior managers with a cascade of good practice down to more junior levels.

[Lord Phillips of Sudbury]

I beg leave to withdraw the amendment.

Health and Social Care Bill

Debate between Earl Howe and Lord Phillips of Sudbury

Monday 7th November 2011 Lords Chamber

[Earl Howe]

I have no issue with the private sector acting to provide services for NHS patients, and never have had. My point was that it is a bit rich on the part of the noble Lord to attack the private sector in the way that he did. It is also a bit rich to say that the NHS has been starved of money. If the country had been foolish enough to elect the Labour Government at the election last year, the NHS budget would have been cut. It would not have been kept abreast of inflation, as we have done. It is absolutely monstrous for the noble Lord to pretend otherwise and the caricature that he has given us of this Bill, and what it does, does him no service whatever.

I would like to move on to my noble friend's amendment. Amendments 24 and 30, introduced by my noble friend, would impose on the Secretary of State a duty to have regard to the need to prevent inequalities of treatment and healthcare developing between NHS and private patients. To start with, it is helpful to have clarity around the definitions as there is sometimes scope for misunderstanding. I believe that the amendments are referring to the potential for inequality between services that are paid for by the NHS and those that patients can pay for privately within an NHS hospital. As my noble friend knows, that is of course not the same as the issue of NHS-funded services being provided by private or voluntary organisations. A patient funded by the NHS is an NHS patient, wherever he or she is treated.

In addressing the issues raised by my noble friend, I feel that I have to begin with a basic point. I am not sure, although my noble friend may yet convince me, that it is a matter for public policy to have a target of narrowing the outcomes between NHS and private-funded healthcare. I understand that many people feel uncomfortable at the idea of private-funded healthcare, especially within an NHS hospital. It has always been a controversial subject for Parliament yet the truth, as we heard from my noble friend Lord Ribeiro, is that private healthcare has always coexisted alongside the NHS. Some people will always wish to pay to be treated in more comfort or more quickly than a publicly funded healthcare system can afford and, at the margin, there will always be some treatments that are clinically available but which are not considered cost-effective for the NHS to fund. Some people will want to pay for those and, in a free country, I do not believe that it is the role of the Government to stop that.

However, I do not believe that there is a gaping chasm between the types of clinical treatment offered by the NHS and by private healthcare. The NHS aims to offer a comprehensive health service and, by comparison with many other countries, the private-funded healthcare sector here is relatively small. This illustrates the high degree of public confidence in the NHS as an institution, in that relatively few people decide to pay for a private alternative. Furthermore, rather than making comparisons with private healthcare, we believe that the Secretary of State should be focusing on improving the quality and equity of the services available to those who use the NHS. That is why the Bill introduces for the first time a duty to have regard to the need to reduce health inequalities, and that clearly emphasises our commitment to fairness across the health service. It also recognises the reality that there are many stark variations in quality and access within the services that the NHS funds before we start looking at the comparison between NHS and private healthcare.

In addition, the Bill places a new duty on the Secretary of State to exercise functions with a view to securing continuous improvement in the quality of services. The Secretary of State will therefore be responsible for doing all that he can to ensure that the NHS provides the best quality care to all its patients, no matter what treatment they are receiving or when they are receiving it. The aim of the Government and the Bill is to create a system that delivers world-class healthcare and healthcare outcomes for all NHS patients.

I understand that there is some residual concern that private healthcare might represent a better deal for patients treated by NHS providers but we do not believe that this is the case. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would do that. We have in place a robust system of service quality regulation that the Bill strengthens and makes more accountable. Fundamentally, the GMC’s Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor’s first concern and never discriminating unfairly against patients or colleagues. This means that if a doctor were treating private patients to a better clinical service, they would be in breach of these principles and could therefore be putting their registration at risk.

Similarly, any doctor who inappropriately attempts to persuade patients to use private services for their own gain would be in serious breach of medical ethics. For example, the department guidance on NHS patients who wish to pay for additional private care says this:

“NHS doctors who carry out private care should strive to avoid any actual or perceived conflict of interest between their NHS and private work”.

Indeed, the GMC’s own guidance states:

“You must give patients the information they want or need about … any conflicts of interest that you, or your organisation, may have”.

It makes the point again, in Good Medical Practice:

“You must not put pressure on patients to accept private treatment”.

[Lord Phillips of Sudbury]

If the Minister is correct in his description of the status quo, why does he think that three distinguished consultants, who are in the thick of it, asked to add their names to my amendment?

[Earl Howe]

My Lords, I have yet to hear from at least one of those consultants. Clearly it is for them to explain why they added their names. I am trying to explain to my noble friend that I see grave problems in accepting an amendment of this kind because in practice it is a non-issue, and because the idea that this is a matter for public policy is one that we should perhaps have a further conversation about. I am not convinced that my noble friend is introducing a matter that should go into statute. It is probably best if we defer further debate on this subject. I have listened carefully to my noble friend and other noble Lords who have spoken. I am happy to have a conversation with him after the Committee stage. I understand the issue that he has raised and I hope that he will accept that, but I see considerable difficulties in trying to frame an amendment in a way that will do precisely what he wants.

[Earl Howe]

I shall be happy to look at that. Of course, Monitor has a role in making sure that a foundation trust adheres to the conditions of its authorisation, one of which is that its principal purpose will be to serve NHS patients. There could be mileage in that and I would be happy to look at it.

[Lord Phillips of Sudbury]

My Lords, I thank the Minister for his careful response to the debate. I also warmly thank all noble Peers who have taken part in it. It is worth putting on the record that not a single person spoke against the amendment; I think all but one spoke warmly for it. My noble friend said twice that I sought to introduce an inappropriate policy matter into the Bill. This is not a policy, it is a principle—a very fundamental principle. Indeed, the Minister himself, earlier in his response, talked with some pride of the fact that the Secretary of State has to reduce inequalities. That is the same principle, although the area of the Bill that deals with it is not about inequalities between NHS patients and private patients but about those between NHS patients in different parts of the country. It does not cover what is covered by the amendment.

However, I am grateful for the Minister’s offer of conversations afterwards, which I will happily take up. I will certainly want to co-ordinate not only with the three noble consultants who have added their names to the amendment but with others in the House who I know feel strongly about this. I feel sure that the wish and will is that this matter should be brought back at the next stage of the Bill, perhaps with better wording—several Peers referred to that. With that, I beg leave to withdraw the amendment.

Health: Charities

Debate between Earl Howe and Lord Phillips of Sudbury

Wednesday 12th October 2011 Lords Chamber

[Lord Phillips of Sudbury]

My noble friend the Minister will be well aware that there is a chapter in the health Bill on public involvement. Will he accept that there is a general perception that at present there is extraordinarily little attempt made by the health bureaucracies to engage particularly small local charities, which often have more to give in terms of public involvement than the very large ones?

[Earl Howe]

It varies. I am well aware of some PCTs that are engaging very creditably with voluntary organisations, but I am sure my noble friend can give examples of where that is not happening. I can only say to him that the policy of any qualified provider should mean that local voluntary organisations that can provide services to the quality and terms that the NHS requires should be in with an equal chance of providing services. We will ensure that proper guidance is issued to make sure that happens.